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TI: So explain to me the process -- I always think that the three of you would sort of form your opinions first, in terms of... I know it was a unanimous decision amongst the three of you. But was it a case where you actually had to write your opinion first before the other two decided how they were going to...

MS: No, the way it works on our court is that we all read the briefs and then we hear the argument, and then we go back into the conference room and discuss the case, and we tentatively decide how it's going to come out and who should write the opinion. And then, if it's an important case, a significant precedential case, but one that's going to create precedent for the future, then the writing judge has to go back to his or her office and write the opinion, and then circulate it for the other judges to comment on. So it's stages. You read the briefs, you hear the arguments, you discuss the case, an opinion is written, the other judges comment, they can agree, they can disagree, and then you finally come out with the final product. It can take quite a while.

TI: Good. Thanks for explaining that. You mentioned earlier that you wanted to write the opinion in a way that the government lawyers would not appeal to the U.S. Supreme Court, and they decided --

MS: Well, I wanted to make it as hard as possible. [Laughs]

TI: Right. And so did it surprise you that they decided to just drop it after the appeal?

MS: Well, let me say I wouldn't have been surprised, terribly surprised if they had decided to take it up, but I can't say that I was really surprised that they decided to stop, because they had not appealed Korematsu.

TI: One of the things when I talked with Gordon twelve years ago, I'm not sure if it's regret, but he expressed the desire that he had wished that it had gone to the U.S. Supreme Court.

MS: Yes, Gordon Hirabayashi was very upset that the government had not appealed. And he wanted to have his case vindicated by the United States Supreme Court. He felt very strongly about it. And I kind of subtly tried to tell him a few times when we appeared at programs that really it's best to leave well enough alone in these circumstances. Don't run after the train after you've caught it. [Laughs]

TI: So he should just, so he won.

MS: He won, but I can understand his feelings because he had taken a matter of principle to the Supreme Court, and they had not recognized that principle and he wanted them forty years later to say that they had been wrong. That I think was a little bit too much to ask for.

TI: So I asked, actually, after talking to Gordon, I asked some of the coram nobis lawyers, Don Tamaki and Dale Minami who worked on Korematsu, I asked them, at the U.S. Supreme Court level, Korematsu and Hirabayashi are still there as opinions, they haven't been overturned or anything like that. So how did they feel about it? And they pointed to your opinion and Judge Patel's opinions as saying they felt that what you did was I think the term they said was you "took the legs out from under those decisions," so they were, in their words, "hollow," or they didn't really mean that much.

MS: Oh, that's clearly so. And the subsequent writing has recognized that. And in fact, the Supreme Court's decisions in Hirabayashi and Korematsu were repudiated by the judgment of history. I think I even said in Hirabayashi, years before the coram nobis cases came to us. (They have) always been, as I think one scholar has called it, pariahs. And the Supreme Court has never cited them with approval.

TI: So this is maybe what I don't understand. More recently, I think Dale Minami told me that, he said the Bush administration actually used Korematsu, they cited Korematsu I think relative to the enemy combatant situation? And so he was pretty livid about that. He said they should not have done that, but yet they did. Is it still a danger that they're still out there, Korematsu and Hirabayashi at the Supreme Court level?

MS: Well, I don't think so. I'm not familiar with the citation by the government in those cases. I'm not surprised that that might have happened over time. I know the Supreme Court has never cited them with approval, and I don't think that very many lower courts would cite them with approval. In fact, I know that they wouldn't now. I'm fairly confident that they wouldn't now. Because as you say, they really, once the basis for them which was deference to a military judgment was undercut, they just had to fall by their own weight. Now the lingering question in our country, I think, is to what extent must the courts defer to questions of exigency and national security, to judgments where there are exigencies and national security interests at stake. And I think that's, to some extent will always be a question in our law and under our constitution because there are tensions there. But I think that there's a lesson that we have learned from the internment cases, that you have to be very careful when we just blindly defer to military judgments, that we have to be careful that they have some basis.

TI: And so hopefully, or perhaps asking for, I guess, the administration or the government officials to be a little more transparent? I'm thinking about what happened in the case of World War II. That much of the information that helped overturn Hirabayashi and Korematsu and support the redress movement didn't come to light for thirty, thirty-five years later, because they were confidential top secret documents. And it gets back to some of the reasons why the writ of coram nobis was used. I mean, here we had Justice Department lawyers who were perhaps aware of intelligence reports that would have complicated their case and didn't make the court aware of that. And there are these judgment calls that top government officials make under a lot of pressure. They're worried about national security. So it feels like the courts may always be at a disadvantage because they may not be able to have all the information, the transparency, because of national security, especially if you're in a war or if there's a terrorist action. So that's why I'm trying to... we have this discussion in high school classrooms, and that's the one that is hard to get at.

MS: Well, of course, it's a classic discussion going back to the Pentagon Papers are another example where the issues of national security versus the Constitution, in that situation it was the First Amendment, freedom of the press, whether security interests trump the freedom of the press and the Supreme Court said no. But it's the classic problem of can you publish the day that the troop ship is going to leave to go to battle so that the lives of those troops are in danger. And the answer is no, you shouldn't do that. But can you publish, after the fact, what really went on? Of course you should be able to. There are going to be new situations that arise all the time, that's the way history moves and that's the way the law moves. But I think that each time that we have an episode like that we learn new lessons and become more wary of jumping to conclusions. I think that's the good part of it.

TI: Okay. And it's so much human nature. As we talk about in the classroom, it's classic for politicians and top government officials to, it's better safe than sorry. And so when you see and talk about a lot of these decisions, it isn't really clear at the time. As a historian, it's easier to go back and say, okay, forty years after the fact you have these documents, we can sit there, we can look at it, but what we talk about in the classroom is if these things are happening in the moment, and how can people make better decisions without erring to be too safe. To err on the side of, okay, we'll take away civil liberties from people because it will make us safer, but in the process you're, again, taking away the civil liberties. Again, classic discussion.

MS: Yeah, this is the classic discussion and we'll keep having it. But one scholar whom I think very highly of is from my own law school, Professor Geoffrey Stone, and he wrote a book in which I think the overall theme is, it traces various times in our history when we've experienced repression of various kinds from the alien sedition acts to what happened after World War I and including the internment. And he concludes -- the book is called Perilous Times -- and he concludes that we from time to time get carried away and strike the wrong balance in favor of repression. But that eventually, by studying our history, we learn that we made a mistake. And so each time maybe we'll start understanding our mistakes a little sooner, and maybe that's progress. And I think that's probably right.

TI: Okay, good.

<End Segment 5> - Copyright &copy; 2012 Densho. All Rights Reserved.